Citation Nr: 0114955
Decision Date: 05/30/01 Archive Date: 06/04/01
DOCKET NO. 00-16 233A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
L. McCain Parson, Associate Counsel
INTRODUCTION
The deceased veteran had recognized guerrilla service from
January 1944 to December 1945. The appellant is the deceased
veteran's spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines, which denied the
appellant's claim seeking entitlement to Dependency and
Indemnity Compensation based on service connection for the
cause of the veteran's death, and also determined that she
was not entitled to accrued benefits. In her notice of
disagreement received in June 2000, the appellant expressed
desire to pursue the issue of death compensation benefits
only.
FINDINGS OF FACT
1. The veteran died in July 1996; the certification of death
reflects pneumonia, organism unspecified, as the cause of
death. The terminal discharge summary reflects sepsis
secondary to meningitis, pneumonia, urinary tract
infection, and non-insulin dependent diabetes mellitus.
2. During his lifetime, the veteran was service-connected for
residuals of shell fragment wound, right hand with injury
to Muscle Group IX; residuals of shell fragment wound,
left foot with injury to Muscle Group X; scar, residuals
of shell fragment wound, left arm with injury to Muscle
Group V; and scar, residuals of shell fragment wound, left
thigh.
3. Credible evidence has not been submitted to show that any
of the service-connected disabilities or any other
disability of service origin resulted directly in the
veteran's death, or materially contributed to or hastened
his death.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
not warranted. 38 U.S.C.A. § 1310 (West 1991); Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114
Stat. 2096, 2098-99 (2000) (to be codified as amended at 38
U.S.C. § 5107); 38 C.F.R. § 3.303 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Assist
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (hereinafter,
"VCAA"). Among other things, this law eliminated the
concept of a well-grounded claim and redefined the
obligations of the VA with respect to the duty to assist.
This change in the law is applicable to all claims filed on
or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of enactment
and not yet final as of that date. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, ___ (2000). Although the changes
articulated in the new legislation are less stringent than
those requiring a claimant to establish a well-grounded
claim, the Board determines that no prejudice will result to
the appellant by the Board's consideration of this matter.
See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
After a review of the record, the Board is satisfied that VA
has provided notice to the appellant of the required
information and evidence and the assistance to obtain that
evidence. Letters sent to her by the RO in July 1999 and May
2000 advised her of what she should do regarding evidence
required to support her claim. She was further notified and
informed of the basis of the denial of her claim and the
necessary elements of the claim in a July 2000 statement of
the case and August 2000 supplemental statement of the case.
The Board also determines that no further assistance to the
appellant is required as regards the claim, as there is no
reasonable possibility that such assistance would aid in
substantiating the claim. Id. Available relevant medical
records have been either sought by the RO or submitted by the
appellant, and the appellant has not indicated that any other
medical records pertinent to the claim are available and
outstanding. No further assistance in developing the facts
and information pertinent to this claim is required to comply
with the duty to assist mandated by the VCAA. Accordingly,
the Board does not find that the claim of entitlement to
service connection for the cause of the veteran's death needs
to be remanded. See Soyini v. Derwinski, 1 Vet. App. 540
(1991).
II. Service Connection
The appellant, the deceased veteran's spouse, contends that
the veteran's death was related to and or aggravated by his
service-connected disabilities. She and other lay persons
state that the veteran suffered with coughing, swellings of
his legs, and "not totally healed wounds." In the
alternative, it is her opinion that some small particles of
shell fragments caused infections of the unhealed wounds.
She believes that the many years of infection materially and
substantially contributed to her husband's death. The
appellant also contends that the diabetes mellitus manifested
many years earlier as frequent urination, fainting spells,
dizziness, and easy fatigue contributed to her husband's
death.
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. See 38 U.S.C.A. § 1310 (West
1991); 38 C.F.R. § 3.312(a) (2000). In order to constitute
the principal cause of death, the service-connected
disability must be one of the immediate or underlying causes
of death, or be etiologically related to the cause of death.
See 38 C.F.R. § 3.312(b). To be a contributory cause of
death, it must be shown that the service-connected disability
contributed substantially or materially to cause death, that
it combined to cause death, or that it aided or lent
assistance to the production of death. See 38 C.F.R. §
3.312(c)(1). If the service-connected disability affected a
vital organ, consideration must be given to whether the
debilitating effects of the service-connected disability
rendered the veteran less capable of resisting the effects of
other diseases. See 38 C.F.R. § 3.312(c)(2).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. See Gilbert
v. Derwinski, 1 Vet. App. 49, 53 (1990); see also Hayes v.
Brown, 5 Vet. App. 60, 69 (1993).
The death certificate reflects that the veteran died in July
1996. The cause of death was pneumonia, organism
unspecified. At the time of his death, the veteran was
service-connected for residuals of a shell fragment wound,
right hand (major) with injury to Muscle Group IX evaluated
as 10 percent disabling; residuals of a shell fragment wound,
left foot with injury to Muscle Group X evaluated as 10
percent disabling; scar, residuals of a shell fragment wound,
left arm with injury to Muscle Group V evaluated as 10
percent disabling; and scar, residuals of a shell fragment
wound, left thigh evaluated as noncompensably disabling.
Terminal hospital records from Benguet General Hospital
together with a clinical abstract received by the RO in July
2000 reflect that the 74-year-old veteran was admitted to
Benguet General Hospital in June 1996 due to cough, fever,
and difficulty of urination of 4 days duration. The admitting
diagnoses were upper respiratory tract infection and benign
prostatic hypertrophy. The chest x-ray reflected pneumonia.
The veteran was discharged home after 16 days apparently
improved. The final diagnoses were pneumonia, benign
prostatic hypertrophy, and non-insulin dependent diabetes
mellitus. The veteran was readmitted in July 1996 for sudden
onset of weakness and generalized body pains, fever, cough,
and headaches. The veteran was confined to the hospital and
diagnosed as a case of non-insulin dependent diabetes
mellitus and pneumonia. The July 1996 hospital discharge
summary reflects the final diagnoses of sepsis secondary to
meningitis, pneumonia, urinary tract infection, and non-
insulin dependent diabetes mellitus.
The veteran reported on the January 1953 application for
compensation benefits that he sustained broken right ribs
after being wounded in action. An October 1953 VA
examination reflects the evaluation of the above mentioned
shell fragment wounds and that the left side of the chest was
somewhat elevated and slightly deformed. The October 1953
chest x-ray was negative. The report of VA examination does
not reflect clinical findings comparable to those in the
terminal hospital records (e.g., coughing, frequent
urination, fainting spells, dizziness, fatigue, pneumonia,
diabetes, or meningitis).
The veteran was evaluated on multiple occasions thereafter.
In May 1968, Dr. E.R. related that pulmonary dysfunction,
inter alia, was a residual of the injuries sustained during
war operations. The private record reflects complaints of
difficulty of respiration, but does not include clinical
findings related to the respiratory system other than the
statement of pulmonary dysfunction. The Board stresses that
the diagnosis of pulmonary dysfunction was reported by Dr.
E.R. more than 22 years after the veteran separated from
service with no diagnosis of a pulmonary disease or pneumonia
until 1996. Dr. E.R.'s May 1968 statement does not report or
describe any of the conditions listed in the terminal
hospital records.
On VA examination in August 1968, the veteran complained of
chest pain. There were no clinical findings related to the
respiratory system. The report of chest x-ray associated
with the examination reflects slight fibrotic strands in both
infraclavicular areas, probably representing scarring from a
previous inflammatory process, possibly tuberculous in
nature, but felt to be of no clinical significance. The x-
ray report bears the diagnosis of pulmonary scarring,
"BUL." The Board observes that the report of VA
examination does not indicate any relationship between the
pulmonary findings and the veteran's military service or the
service-connected shell fragment wounds.
A subsequent private medical examination conducted in January
1969 by Dr. D.I. reflects that the respiratory system was
evaluated as normal with no reference to coughing. The next
evidence of record that reports respiratory complaints is
that dated in 1996 and described above.
The only medical evidence possibly relating the cause of the
veteran's death to service or service-connected disability is
Dr. E.R.'s statement. However, there is no indication that
Dr. E.R., who examined the veteran many years after service,
reviewed medical records to reach any such conclusion.
Moreover, because his statement refers only to pulmonary
dysfunction but provides no clinical or diagnostic findings
of pulmonary disease and did not indicate pneumonia or any
other disease associated with the veteran's death, it is of
no probative value and cannot be the basis for the award of
service connection for the cause of the veteran's death. See
Hayes v. Brown, 5 Vet. App. at 69; see also Reonal v. Brown,
5 Vet. App. 458, 460-61 (1993).
Next, the Board turns to address other contentions presented
by the appellant. After a comprehensive review of the claims
file, there is no evidence to reveal that the service-
connected shell fragment wounds to the right hand, left arm,
left thigh, and left foot evaluated in combination as 30
percent disabling affected a vital organ, particularly, the
lungs. Even considering the evidence of record which
reflects signs of old inflammation over sites of residuals of
shrapnel wounds and recurrent ulceration of the elbow due to
movement, first documented in 1978 by Dr. P.L. and last
recorded in 1991 on examination by Dr. P.L., there is no
clinical reference in June or July 1996 to complaints of
pain, drainage, purulence, or heat to any of the shell
fragment wound sites. Specifically, the terminal hospital
records do not report an infection of unhealed shell fragment
wounds in the clinical records or final diagnoses nor does
the certificate of death list infection of unhealed shell
fragment wounds as the immediate or underlying cause of the
veteran's death.
Despite the fact that the appellant submitted a clinical
abstract in July 2000 which reflects that on admission to
hospitalization in June 1996 the veteran was not a diagnosed
case of diabetes mellitus and that ten years earlier he had
symptoms of polydipsia, polyuria, polyphagia, and prolonged
wound healing, that evidence does not warrant service
connection for the cause of the veteran's death. There is no
evidence of diabetes during service or within the applicable
presumptive period following service. See 38 C.F.R. § 3.307,
3.309 (2000). As such, the non-insulin dependent diabetes
mellitus diagnosed in 1996, many years following active
service, may not be considered a service-connected condition.
The Board acknowledges that the appellant and her lay
witnesses are competent to offer testimony as to symptoms and
observations. However, lay persons are not qualified to
offer medical opinions as to the causation or etiology of the
condition(s) that resulted in the death of the veteran. See
Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). The Board stresses
that there is no documented clinical evidence of coughing,
infection, or frequent urination by the veteran coincident
with the 1953 VA examination or for many years after service.
Therefore, it appears that the death causing conditions as
reported by the appellant and documented on the death
certificate and terminal hospital records were not incurred
in or aggravated by military service and first manifested
many years after military service.
In sum, there is no probative evidence that demonstrates the
service-connected shell fragment wounds caused or materially
or substantially contributed to the veteran's death by
causing pneumonia or combining with any other nonservice-
connected disability to cause death. See 38 U.S.C.A. § 1310;
38 C.F.R. § 3.312. In addition, the appellant has not
presented any evidence to show that pneumonia, the cause of
the veteran's death, or any contributory disability, was
treated in service or within any applicable presumptive
period following military service. In the absence of
evidence showing that the pneumonia was caused by or was
etiologically related to the service-connected shell fragment
wounds or any other incident of his military service, service
connection for the cause of the veteran's death is denied.
See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); see also
VCAA, § 4 (to be codified as amended at 38 U.S.C. § 5107).
ORDER
Service connection for the cause of the veteran's death is
denied.
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals